This morning's mail brought a very exciting volume, the September 2011 issue of the UC Irvine Law Review, which has a lengthy symposium on "Law As …" Theory and Method in Legal History. This reminds me of just how many different directions legal history scholarship is pointing. I mean, this issue is more than 500 pages long! There's a lot that ought to be said about this, but right now I'd like to crib a little from Catherine Fisk and Bob Gordon's introduction and say that they divided the articles into five categories of "law as" — law as the language of social relations; law as consciousness; law as enhanced ritual and as spectacle; law as sovereignty; and law as economic/cultural activity.
My interests run these days to how law serves as a gauge of culture and also as an important technology, as well as an instrument of power and governor of it (to a lesser extent). And I'm also mightily interested in the ways that legal scholarship can be applied to immediate issues (what is increasingly called "applied legal history.") I hope to write some more — perhaps this summer when there's time! — about the many directions legal historians are going. I have the feeling this field is pointing out in so many directions. I think you'll really enjoy the articles! Here they are:
Catherine L. Fisk and Robert W. Gordon, Foreword: “Law As . . .”: Theory and Method in Legal History
Kunal M. Parker, Law “In” and “As” History: The Common Law in the American Polity 1790‒1900
Roger Berkowitz, From Justice to Justification: An Alternative Genealogy of Positive Law
Marianne Constable, Law as Claim to Justice: Legal History and Legal Speech Acts
Christopher W. Schmidt, Conceptions of Law in the Civil Rights Movement
Norman W. Spaulding, The Historical Consciousness of the Resistant Subject
Barbara Young Welke, Owning Hazard, A Tragedy
Peter Goodrich, Specters of Law: Why the History of the Legal Spectacle Has Not Been Written
Assaf Likhovski, Chasing Ghosts: On Writing Cultural Histories of Tax Law
John Fabian Witt, The Dismal History of the Laws of War
Paul Frymer, Building an American Empire: Territorial Expansion in the Antebellum Era
Roy Kreitner, Money in the 1890s: The Circulation of Politics, Economics, and Law
Ritu Birla, Law as Economy: Convention, Corporation, Currency
Christopher Tomlins and John Comaroff, “Law As . . .”: Theory and Practice in Legal History
Law as consciousness?
As Fisk and Gordon say at 530 -31 …
In contrast to the various conceptions of law as communication or, as we will see in later papers, a domain of existence or activity, there are histories in which law figures as a form of consciousness, or as a lens through which people
perceive the world. … As consciousness, law can be imagined in many different ways. The articles in this symposium emphasize law as the consciousness of resistance or rebellion: law as the opposition or antithesis, law as that which people resist, or law as the source of its own resistance.
Sorry Al, that just makes it worse.